ARCTIC OBITER

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12 | <strong>ARCTIC</strong> <strong>OBITER</strong> S.C.C. UPDATE HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT. APPEAL JUDGMENTS CRIMINAL LAW: EXCLUSION OF EVIDENCE R. v. Beaulieu (Que. C.A., April 27, 2009) (33181) 2010 SCC 07 (LexUM) | February 25, 2010 RCMP officers obtained a warrant authorizing them to intercept the accused's private communications, and while installing listening devices in his car, found a hidden compartment containing a leather case with a loaded firearm. The evidence was included. As Justice Charron wrote (at p. 5) “…a *loaded+ gun is reliable evidence”. CRIMINAL LAW: S.24 (1); SENTENCING; STATUTORY MINIMUMS R. v. Nasogaluak (Alta. C.A., November 14, 2007) (32423) 2010 SCC 06 (LexUM) | February 19, 2010 The S.C.C. held: where state misconduct relates to the offence or the offender, the sentencing judge may properly take relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence where state misconduct does not relate to the offence or the offender, however, the accused must seek his or her remedy in another forum a sentence reduction outside statutory limits does not generally constitute an "appropriate" remedy within the meaning of s. 24(1) the possibility is not foreclosed that in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents. CRIMINAL LAW: CHILD PORN; SEARCH WARRANT R. v. Morelli (Sask. C.A., May 15, 2008) (32741) 2010 SCC 08 (LexUM) | March 19, 2010 A search warrant based on information originating with a computer technician (and also containing information obtained by police about child pornography generally) who arrived unannounced at an accused’s house to install a high-speed internet connection is contrary to s. 8 or the Charter. The accused lived with his wife and two children, aged 3 and 7, but was alone that particular day with his younger daughter. When the technician opened the accused's web browser, he noticed several links to both adult and child pornography sites in the taskbar's "favourites" list, including two that were labelled "Lolita Porn" and "Lolita XXX". He also saw a pornographic image, but he could not remember afterwards if it was on the browser's home page or on the computer desktop. In the room, he noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the toys and at the child. Unable to finish his work on that day, the technician returned the following morning and noted that everything had been "cleaned up": the child's toys had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the computer user's chair and the computer hard drive had been "formatted”. Convicted at trial, convicted by C.A., acquitted by the S.C.C. TORTS 101 Fullowka v. Pinkerton's of Canada Ltd. (NWT C.A., May 22, 2008) (32735) 2010 SCC 05 (LexUM) | February 18, 2010 During a strike at a mine, the mine owner decided to continue operating the mine with replacement workers. The strike degenerated into violence, there were attacks on private security guards who were unable to control the situation, and the mine owner turned to Pinkertons for security services who had at one point 52 guards on site. Mr. Warren evaded security, entered the mine, and while underground, planted an explosive device which killed nine miners. Mr. O’Neill was among the first on the scene and discovered dismembered bodies, including a close friend. The S.C.C. held: the security firm and government owed a duty of care, but had not breached that duty
MARCH 2010 | 13 NOTICES The Supreme Court of the Northwest Territories Court of Appeal of the Northwest Territories SCHEDULING NOTICE TO MEMBERS OF THE BAR PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT GENERAL CRIMINAL LIST WILL BE CALLED ON: Wednesday, May 19 th 2010 at 14:00 hrs NOTE: AT YELLOWKNIFE NT IN COURTROOM #1 1. All Counsel (Crown & Defence) with pending matters are to attend the Calling of the List, either personally or by agent. 2. For those pending matters in which the Accused person has elected trial by Judge and Jury, counsel (both Crown & Defence) are to advise the presiding Judge at the time of, or prior to, the Calling of the List whether the matter will indeed be proceeding as a contested Jury Trial and, if so, the estimated duration of the Jury Trial. 3. For those with Summary Conviction Appeals, please be reminded of Rule 117 of the Criminal Rules of the NWT. NOTICE TO MEMBERS OF THE BAR PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON Wednesday, May 19th, 2010 at 1500 hrs at Yellowknife NT IN COURTROOM #1 for the Court of Appeal Assize commencing June 15th, 2010 COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006: CIVIL APPEALS and CRIMINAL APPEALS a) Appeal books must be filed not later than 12 weeks from the date on which the notice of appeal was filed. b) Appellant’s Factums must be filed within 60 days of filing of the appeal book or within 7 months of the notice of appeal whichever date is earliest. c) Respondent’s factum must be filed within 30 days of being served the appellant’s factum. d) Only those appeals that have been perfected as at May 19th, 2010 will be set for hearing at the June 15th, 2010 assize. the trial judge's findings of liability against the union cannot be sustained the claims of Mr. O'Neil should have been dismissed Pinkerton's and the government did owe a duty of care to the murdered miners to take reasonable steps to prevent Mr. Warren's intentional wrongful act, but did not breach that duty. LEAVES TO APPEAL GRANTED ABORIGINAL LAW: MÉTIS Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar, Métis Settlements Land Registry v. Barbara Cunningham, et al. (Alta. C.A., June 26, 2009) (33340) March 11, 2010 Is the Alberta Métis Settlements Act unconstitutional by prohibiting individuals with Indian status obtaining Métis settlement membership. CRIMINAL LAW: DELAY John Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus and Raymond Pollard v. Her Majesty the Queen (Ont. C.A., October 28, 2009) (33519) March 11, 2010 Members of the Toronto Police Force were charged in January 2004 with a series of offences, including attempt to obstruct justice. On consent of the parties, the suggested target trial date was January 2008. By the end of December 2007, it became clear the pretrial motions would not be completed in time to start the trial on that date, and the trial was rescheduled. Is this a constitutionally impermissible delay. Eugene Meehan, Q.C., is a Litigation Partner at Lang Michener, Ottawa. His primary area of work is with the Supreme Court of Canada, mainly assisting other lawyers in taking cases (both Leave to Appeal and Appeal). He also does Public Law generally. For previous summaries, and to keep up-to-date with all SCC appeals and leave to appeals, contact Eugene at emeehan@langmichener.ca.
Page 1 and 2: ARCTIC OBITER MARCH 2010 V OLUME XI
Page 3 and 4: MARCH 2010 | 3 PRESIDENT’S MESSAG
Page 5 and 6: MARCH 2010 | 5 MEMBERSHIP NEW MEMBE
Page 7 and 8: MARCH 2010 | 7 (CONTINUED FROM PAGE
Page 9 and 10: MARCH 2010 | 9 was a young teenager
Page 11: MARCH 2010 | 11 NWT LEGISLATIVE NEW
Page 15 and 16: MARCH 2010 | 15 RESOURCES The Law S

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